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CHAPTER XIX.

OF COURTS OF A CRIMINAL JURISDICTION.

1. In the method of punishment may be considered, I. The several courts of criminal jurisdiction. II. The several proceedings therein

Page 258 2. The criminal courts are, I. Those of a public and general jurisdiction throughcut the realm. II. Those of a private and special jurisdiction

258

3. Public criminal courts are, I. The High Court of Parliament, which proceeds by impeachment. II. The court of the lord high steward, and the court of the king in full Parliament; for the trial of capitally indicted peers. III. The Court of King's Bench. IV. The Court of Chivalry. V. The Court of Admiralty, under the king's commission. VI. The Courts of Oyer and Terminer and General Jail Delivery. VII. The Court of Quarter Sessions of the peace. VIII. The sheriff's tourn. IX. The court-leet. X. The court of the coroner. XI. The court of the clerk of the mark258-275

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4. Private criminal courts are, I. The court of the lord steward, &c., by statute of Henry VII. II. The court of the lord steward, &c., by statute of Henry VIII. III. The university courts 275-277

CHAPTER XX.

OF SUMMARY CONVICTIONS.

1. Proceedings in criminal courts are, I. Summary. II. Regular

280

2. Summary proceedings are such whereby a man may be convicted of divers offenses without any formal process or jury, at the discretion of the judge or judges appointed by act of Parliament or common law 280

3. Such are, I. Trials of offenses and frauds against the laws of excise and other branches of the king's revenue. II. Convictions before justices of the peace upon a variety of minute offenses chiefly against the public police. III. Attachments for contempts to the superior courts of justice 281-288

CHAPTER XXI.

OF ARRESTS.

1. Regular proceedings in the courts of common law are, I. Arrest. II. Commitment and bail. III. Prosecution. IV. Process. V. Arraignment, and its incidents. VI. Plea and issue. VII. Trial and conviction. VIII. Clergy. IX. Judgment, and its consequences. X. Reversal of judgment. XI. Reprieve or pardon. XII. Exe

cution

289

2. An arrest is the apprehending or restraining of one's person, in order to be forthcoming to answer a crime whereof one is accused or suspected

3. This may be done, I. By warrant. II. By an officer, without warrant. a private person, without warrant. IV. By hue and cry

CHAPTER XXII.

OF COMMITMENT AND BAIL.

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289

III. By 289-295

1. Commitment is the confinement of one's person in prison for safe custody, by warrant from proper authority; unless, in bailable offenses, he puts in sufficient bail or security for his future appearance

296

2. The magistrate is bound to take reasonable bail, if offered; unless the offender be not bailable

296

man

3. Such are, I. Persons accused of treason; or, II. Of murder; III. of or, slaughter by indictment; or if the prisoner was clearly the slayer. IV. Prison-breakers, when committed for felony. V. Outlaws. VI. Those who have abjured the realm. VII. Approvers and appellees. VIII. Persons taken with the mainor. Persons accused of arson. X. Excommunicated persons

IX.

298

4. The magistrate may, at his discretion, admit or not admit to bail persons not of good fame charged with other felonies, whether as principals or as accessories 5. If they be of good fame, he is bound to admit them to bail

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6. The Court of King's Bench, or its judges in time of vacation, may let to bail in any case whatsoever

299

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTION.

1. Prosecution, or the manner of accusing offenders, is either by a previous finding of a grand jury, as, I. By presentment. II. By indictment. Or, without such finding, III. By information. IV. By appeal

Page 301

2. A presentment is the notice taken by a grand jury of any offense, from their own knowledge or observation

301 3. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented on oath by, a grand jury, expressing with sufficient certainty the person, time, place, and offense 302

4. An information is, I. At the suit of the king and a subject, upon penal statutes. II. At the suit of the king only. Either, 1. Filed by the attorney-general ex officio, for such misdemeanors as affect the king's person or government; or, 2. Filed by the master of the crown-office (with leave of the Court of King's Bench), at the relation of some private subject, for other gross and notorious misdemeanors. All differing from indictments in this, that they are exhibited by the informer, or the king's officer, and not on the oath of a grand jury.

307-312

5. An appeal is an accusation or suit brought by one private subject against another for larceny, rape, mayhem, arson, or homicide: which the king can not discharge or pardon, but the party alone can release

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

312

1. Process to bring in an offender, when indicted in his absence, is, in misdemeanors, by venire facias, distress infinite, and capias; in capital crimes, by capias only: and in both, by outlawry 318-320

2. During this stage of proceedings the indictment may be removed into the Court of King's Bench from any inferior jurisdiction, by writ of certiorari facias; and cognizance must be claimed in places of exclusive jurisdiction

CHAPTER XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.

320

1. Arraignment is the calling of the prisoner to the bar of the court to answer the matter of the indictment.

322

2. Incident hereunto are, I. The standing mute of the prisoner; for which, in petit treason and felonies of death, he shall undergo the peine fort et dure. II. His confession, which is either simple or by way of approvement .

CHAPTER XXVI.

OF PLEA AND ISSUE.

324-331

1. The plea, or defensive matter alleged by the prisoner, may be, I. A plea to the jurisdiction. II. A demurrer in point of law. III. A plea in abatement. IV. A special plea in bar; which is, 1st, autrefoits acquit; 2dly, autrefoits convict; 3dly, autrefoits attaint; 4thly, a pardon. V. The general issue, not guilty

332-341

2. Hereupon issue is joined by the clerk of the arraigns on behalf of the king 341

CHAPTER XXVII.

OF TRIAL AND CONVICTION.

1. Trials of offenses, by the laws of England, were and are, I. By ordeal, of either fire or water. II. By the corsned. Both these have been long abolished. III. By battel, in appeals and approvements. IV. By the peers of Great Britain. V. By jury 342-349

2. The method and process of trial by jury is, I. The impaneling of the jury. II. Challenges: 1st, for cause; 2dly, peremptory. III. Tales de circumstantibus. IV. The oath of the jury. V. The evidence. VI. The verdict, either general or special 350-361

3. Conviction is when the prisoner pleads or is found guilty; whereupon, in felonies, the prosecutor is entitled to, I. His expenses. II. Restitution of his goods 361-363

CHAPTER XXVIII.

OF THE BENEFIT OF CLERGY.

1. Clergy, or the benefit thereof, was originally derived from the usurped jurisdiction of the popish ecclesiastics, but hath since been new-modeled by several stat

utes

Page 365 2. It is an exemption of the clergy from any other secular punishment for felony than imprisonment for a year, at the court's discretion; and it is extended likewise, absolutely, to lay peers for the first offense; and to all lay commoners, for the first offense also, upon condition of branding, imprisonment, or transportation.

371

3. All felonies are entitled to the benefit of clergy, except such as are now ousted by particular statutes

372

4. Felons, on receiving the benefit of clergy (though they forfeit their goods to the crown), are discharged of all clergyable felonies before committed, and restored in all capacities and credits

374

CHAPTER XXIX.

OF JUDGMENT, AND ITS CONSEQUENCES.

1. Judgment (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law 375 2. Attainder of a criminal is the immediate consequence, I. Of having judgment of death pronounced upon him. II. Of outlawry for a capital offense 380

3. The consequences of attainder are, I. Forfeiture to the king. II. Corruption of blood

381

4. Forfeiture to the king is, I. Of real estates, upon attainder: in high treason, absolutely, till the death of the late Pretender's sons; in felonies, for the king's year, day, and waste; in misprision of treason, assaults on a judge, or battery sitting the courts, during the life of the offender. II. Of personal estates, upon conviction; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of the king's courts, and flight 381-388

5. Corruption of blood is an utter extinction of all inheritable quality therein; so that, after the king's forfeiture is first satisfied, the criminal's lands escheat to the lord of the fee; and he can never afterward inherit, be inherited, or have any inheritance derived through him 388, 389

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CHAPTER XXX.

OF REVERSAL OF JUDGMENT.

1. Judgments, and their consequences, may be avoided, I. By falsifying, or reversing the attainder. II. By reprieve or pardon

390

2. Attainders may be falsified or reversed, I. Without a writ of error; for matter dehors the record. II. By writ of error: for mistakes in the judgment or record. III. By act of Parliament; for favor 390-392

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3. When an outlawry is reversed, the party is restored to the same plight as if he had appeared upon the capias. When a judgment on conviction is reversed, the party stands as if never accused

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1. A reprieve is a temporary suspension of the judgment, I. Ex arbitrio judicis. II. Ex necessitate legis; for pregnancy, insanity, or the trial of identity of person, which must always be tried instanter

394-396

2. A pardon is a permanent avoider of the judgment by the king's majesty, in of fenses against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender a new man

396

3. The king can not pardon, I. Imprisonment of the subject beyond the seas. II. Offenses prosecuted by appeal. III. Common nuisances. IV. Offenses against popular or penal statutes, after information brought by a subject. Nor is his pardon pleadable to an impeachment by the Commons in Parliament

398

CHAPTER XXXII.

OF EXECUTION.

1. Execution is the completion of human punishment, and must be strictly per formed in the manner which the law directs.

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Page 403 2. The warrant for execution is sometimes under the hand and seal of the judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judges signing the calendar of prisoners, with their separate judgments in the margin

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403

APPENDIX

1. Record of an Indictment and Conviction of Murder, at the Assizes

§ 2. Conviction of Manslaughter

3. Entry of a Trial instanter in the Court of King's Bench, upon a collateral Issue, and Rule of Court for Execution thereon

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4. Warrant of Execution on Judgment of Death, at the General Jail Delivery in London and Middlesex

A. Statement of Offenses now punishable with Death. (A.D. 1844.) B. Questions proposed by the House of Lords to the Judges in relation to the Law respecting alleged Crimes committed by Persons afflicted with insane Delusion, and the Opinions of the Judges thereon. (Ordered to be print ed, 19th June, 1843.)

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vi

COMMENTARIES

ON

THE LAWS OF ENGLAND:

IN FOUR BOOKS;

WITH AN ANALYSIS OF THE WORK.

BY

SIR WILLIAM BLACKSTONE, KNT.,

ONE OF THE JUSTICES OF THE COURT OF COMMON PLEAS

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